LAET, TBA Conclude Civil Right to Counsel Series

Legal Aid of East Tennessee and the Tennessee Bar Association have concluded a multi-city panel discussion series on the issue of Civil Right to Counsel. This year is the 50th anniversary of Gideon v Wainwright, which established the right to counsel in criminal cases. A great deal of discussion has been going on nationally about the lack of a right to counsel in critical civil cases where the risk of harm is greater than that in many criminal cases, including domestic violence, custody and foreclosure. Each of the sessions began with videos featuring Tennessee Supreme Court Chief Justice Gary Wade and Tennessee Bar Association President Cindy Wyrick. The Knoxville event on Nov. 15 was held at Lincoln Memorial University's Duncan School of Law. The second was Nov. 18 at Memorial Park Community Center in Johnson City and the third presentation was today on the University of Tennessee Chattanooga campus. Read more from LAET or see photos from the events.

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

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This appeal involves a dispute between an insurer and its insured following a fire loss at a commercial building. The case was resolved by a series of motions for partial summary judgment. The issues on appeal involve the amount of damages owed by the insurer for the insured’s lost business income during the period of restoration of the building following the fire. The insurer relies upon two separate provisions of the insurance policy to argue that its obligation to pay for lost business income was limited to either six or, at most, twelve months. The trial court denied the insurer’s motions for partial summary judgment and granted the motions for partial summary judgment filed by the insured, holding that the insurer’s obligation to pay was not limited to either a six-month or a twelve-month period. The insurer appeals. We affirm and remand for further proceedings as may be necessary.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Hansel J. McCadams, District Attorney General; and Ed N. McDaniel, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Corey Brian Austin, appeals the trial court’s revocation of his probation and reinstatement of his eight-year sentence in the Department of Correction. On appeal, he argues that the trial court erred in revoking his probation. Following our review, we affirm the judgment of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel (on appeal); Michael A. Meyer, Deputy Attorney General (at trial); and William C. Bright, Special Assistant Attorney General (at trial), for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Cynthia J. Finch, was indicted for one count of fabricating evidence, a Class C felony; one count of forgery of $1,000 or more but less than $10,000, a Class D felony; and one count of forgery of less than $1,000, a Class E felony. See Tenn. Code Ann. §§ 39-14- 105, -14-114, -16-503. Following a jury trial, the Defendant was acquitted of the fabricating evidence count and convicted of the two forgery counts. The trial court sentenced the Defendant as a Range I, standard offender to two years to be served on unsupervised probation. In this appeal as of right, the Defendant contends (1) that the statute allowing a district attorney general to specially appoint the attorney general and reporter to conduct specific criminal proceedings violates the Tennessee Constitution; (2) that the evidence was insufficient to sustain the Defendant’s convictions; (3) that the trial court erred by excluding evidence of a settlement in a civil lawsuit between the Defendant and Knox County; (4) that the trial court erred in instructing the jury with respect to its definition of “value” and in denying the Defendant’s request for an instruction on the rule of cancellation; (5) that the State abused its discretion in denying the Defendant’s request for pretrial diversion; (6) that the trial court abused its discretion in denying the Defendant’s request for judicial diversion; and (7) that the trial court erred in its determination that the Defendant was not an especially mitigated offender. Following our review, we affirm the judgments of the trial court.

A Shelby County jury convicted the Defendant, Willie Gatewood, of attempt to commit first degree premeditated murder and aggravated burglary. The trial court sentenced the Defendant to fifty-five years for the attempt to commit first degree premeditated murder conviction and to thirteen years for the aggravated burglary conviction. The trial court ordered the sentences to be served consecutively in the Tennessee Department of Correction. On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions. After a thorough review of the record and applicable authorities, we discern no error in the judgments of the trial court. Accordingly, the judgments of the trial court are affirmed.

Robert E. Cooper, Attorney General and Report; Rachel E. Willis, Senior Counsel; Amy P. Weirich, District Attorney General; and Reginald Henderson and Pam Fleming, Assistant District Attorneys General, for appellant, State of Tennessee.

Judge: PAGE

Appellant, Cleo Henderson, was convicted by a Shelby County jury of second degree murder. The trial court sentenced him as a Range II, violent offender to forty years in the Tennessee Department of Correction. On appeal, appellant has presented several issues that we have deemed waived; however, we have reviewed his sufficiency of the evidence and sentencing issues. Following our review, we affirm the judgment of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Dean Decandia, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WOODALL

Petitioner, Telly Savalas Johnson, was convicted by a Shelby County jury of five counts of criminal attempt to commit first degree murder. Petitioner was sentenced by the trial court to an effective sentence of 75 years in the Tennessee Department of Correction. On direct appeal, this court affirmed Petitioner’s convictions and sentences. The facts underlying Petitioner’s convictions can be found in this court’s opinion in State v. Telly Savalas Johnson, No. W2009-00764-CCA-R3-CD, 2010 WL 3245284 (Tenn. Crim. App. at Jackson, filed Aug. 17, 2010), perm. app. denied (Tenn. Jan. 12, 2011). In summary, the proof showed that Petitioner shot a .380 caliber pistol multiple times into a van which contained two adults and three minor children. One of the children was struck in the leg by a bullet. Petitioner filed a timely petition for post-conviction relief, alleging that he was denied the right to the effective assistance of counsel. Following an evidentiary hearing, the postconviction court denied relief. After a thorough review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; and Amy P. Weirich, District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

In 2006, the Petitioner, Louis Mayes, was convicted of first degree premeditated murder. The trial court sentenced him to life in prison. This Court affirmed the Petitioner’s convictions on appeal. State v. Louis Mayes, No. W2007-02483-CCA-R3-CD, 2009 WL 1312629, at *1 (Tenn. Crim. App. May 11, 2009), perm. app. denied (Tenn. Oct. 19, 2009). In 2013, the Petitioner filed a petition for a writ of error coram nobis in which he presented multiple claims, including his right to a hearing to present newly discovered evidence. The coram nobis court summarily dismissed the petition on the basis that the petition was timebarred. On appeal, the Petitioner alleges that the coram nobis court erred when it dismissed his petition, contending that the newly discovered evidence warrants a waiver of the statute of limitations. After a thorough review of the record and applicable authorities, we affirm the coram nobis court’s judgment.

James E. Lanier, District Public Defender, and Timothy Boxx, Assistant District Public Defender, for the appellant, Terrance Demont Moses.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel E. Willis, Senior Counsel; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Terrance Demond Moses, was convicted by a jury of first degree (premeditated) murder and of the Class E felony of possession of a handgun after having been convicted of a felony. He was sentenced to life imprisonment for the first degree murder conviction and to a concurrent four years’ incarceration for the handgun possession. On appeal, the defendant challenges the sufficiency of the evidence; asserts that the gun was admitted into evidence in error; and contends that the trial court erred in permitting the State to exercise a peremptory challenge against a prospective juror. Having reviewed the record, we discern no error and affirm the judgments of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; Marlinee Iverson and Stephanie Zander Johnson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Robert E. Bonds Peeples, appeals as of right from the Shelby County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance of counsel because his trial counsel failed to secure an expert witness to testify regarding the reliability of eyewitness identification. Discerning no error, we affirm the judgment of the post-conviction court.

Robert E. Cooper, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and David Zak, Assistant District Attorney General, for appellee, State of Tennessee.

Judge: PAGE

Petitioner was convicted of one count of aggravated robbery and one count of aggravated assault. The trial court sentenced petitioner to twenty years as a Range II, multiple offender for his aggravated robbery conviction and to fifteen years as a Range III, persistent offender for his aggravated assault conviction, to be served consecutively. He unsuccessfully appealed his convictions and sentences. See State v. Claude Phillips, No. W2008-02810- CCA-R3-CD, 2010 WL 2695328, at *1 (Tenn. Crim. App. July 7, 2010). Petitioner then filed the current petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel at trial. Following an evidentiary hearing, the postconviction court denied relief. On appeal, petitioner argues that he received ineffective assistance of counsel when trial counsel failed to properly investigate petitioner’s mental health condition and failed to present mitigating evidence at his sentencing hearing. Following our review of the parties’ arguments, the record, and the applicable law, we affirm the judgment of the post-conviction court.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; and Amy P. Weirich, District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Joby Lee Teal, filed a “Petition . . . for Extraodinary Relief” in the Criminal Court of Shelby County, asserting that four convictions in 1988 are invalid. The trial court dismissed the petition without an evidentiary hearing. On appeal, Petitioner asserts he is entitled to relief because the four convictions, entered as a result of a negotiated plea agreement, are void because they were illegally ordered to be served concurrently with each other. For the reasons set forth below, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

Petitioner, Jose Luis Vizcaino-Ramos, was convicted by a Hardeman County jury of first degree premeditated murder and sentenced to life in prison. His direct appeal was unsuccessful. See State v. Jose Luis Vizcaino-Ramos, No. W2010-01325-CCA-R3-CD, 2011 WL 3330294, at *1 (Tenn. Crim. App. Aug. 3, 2011), perm. app. denied (Tenn. Nov. 16, 2011). Petitioner subsequently pursued post-conviction relief, which was denied by the postconviction court. On appeal, petitioner contends that he received ineffective assistance of counsel at trial when trial counsel failed to properly investigate his case and failed to request a mental evaluation for appellant. Following our review, we affirm the judgment of the postconviction court.

Today's News

Legal News

Judge Seals Pilot Filings

Acting swiftly on a request from lawyers for Pilot Flying J, U.S. District Judge James M. Moody granted a motion to seal the list of trucking companies that have opted out of a proposed $72 million settlement of diesel fuel rebate charges with the Knoxville company accused of cheating them. The Tennessean reports that both the motion and approval were dated Thursday but did not appear on the federal docket system until today. Moody’s action comes just before a hearing on the proposed settlement, scheduled for Monday in his Little Rock courtroom. The senior judge already has given preliminary approval to the settlement plan.

Lack of Diversity a 'Huge Danger,' Justice Says

The lack of diversity in race, gender and background poses a “huge danger” to the judiciary, both federal and state, Justice Sonia Sotomayor said Tuesday during a speech at American University Washington College of Law. She also slammed the legal profession for perpetuating the glass ceiling, asserting that the number of minority partners in law firms is "dismally small,” the Blog of the Legal Times reports. Law school faculties are also lacking in diversity, according to Vanderbilt University Law School professor Tracey E. George and Toronto law professor Albert H. Yoon, who co-authored a forthcoming article for the Journal of Empirical Legal Studies. They found that law school faculties aren’t nearly as diverse as their student bodies, due to the small field from which professors are hired. Seventy-five percent of all applicants hired by law schools attended a top 50, Tier 1 school, and the majority of those hires came from just three schools: Harvard, Yale or Stanford. The Wall Street Journal law blog has more.

AG Opinion Puts UM Student Housing Project on Hold

Long-delayed plans for a retail and student housing complex on Highland near the University of Memphis are on hold again after Tennessee Attorney General Robert Cooper said in an advisory opinion released Wednesday that neither the university nor the Tennessee Board of Regents is empowered by state law to enter into a “student housing affiliation agreement” with the developer that would have put the university’s name on the privately owned and operated apartment building for students, faculty and staff. The Commercial Appeal has the story.

Law Firm Opens in Downtown Paris

The Dempsey Law Office, a Carroll County firm that has operated for several years in Paris and Henry County, recently opened a new location near the Henry County court square, the Post-Intelligencer reports. Benjamin Dempsey, the firm’s principal partner, offers legal representation for Social Security disability, criminal justice, financial counseling, bankruptcy, wills and estate planning.

Tenn. Supreme Court

Court Rules County Not Responsible for Attack on Inmate

The Tennessee Supreme Court has ruled that Anderson County is not liable for damages beyond medical costs for Kenneth E. King, an inmate who sustained injuries from an attack by cellmates, the Administrative Office of the Courts reports. “There is no evidence that Anderson County Detention Facility officials knew or should have known that Mr. King would become the victim of an attack by his cellmates after he was returned to his cell to await pretrial release,” Justice Cornelia A. Clark wrote in the opinion. In a dissenting opinion, Chief Justice Gary R. Wade disagreed, deferring to the trial court’s finding that Anderson County was liable for King’s injuries, which were sustained after officials failed to timely release him from jail.

Election 2014

GOP Chairman Resigns, Seeks Judgeship

Rutherford County Republican Party Chairman Jeff Peach resigned Wednesday to run for Circuit Court Judge. “I’m still past chairman, but I will not be in any type of leadership role on that board,” Peach told the Daily News Journal. “The reason for that is judicial rules, not the party’s rules. As long as I am a candidate or fortunate enough to be elected. I can’t be in a leadership role with political organizations.”

Circuit Court Judge Announces Retirement

Circuit Court Judge John J. Maddux Jr. has announced he is retiring and will not seek re-election in 2014. He has served 30 years after first being elected in 1984. He was re-elected without opposition in 1990, 1998 and 2006. The 13th Judicial District is composed of Clay, Cumberland, DeKalb, Overton, Pickett, Putnam and White counties.

Hamilton County Clerk to Seek Re-Election

Hamilton County Clerk Bill Knowles announced today that he is running for re-election, the Chattanoogan reports. Knowles is known for pioneering Tennessee’s first tag renewal option by Internet. He has received three County Clerk of the Year awards and was named Statewide Official of the Year by the County Officials Association in 2006.

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.